Ex refuses to pay any maintenance/Schedule 1?

[supernova9]

I have 3 children who live with me and stay with my ex alternate weekends. My ex pays no maintenance and doesn't contribute financially in any way towards any of the children.

My ex is "self employed" with their own small business, this is no secret as there's a business website, social media adverts all with ex's name and contact details on. Nothing is registered though so no tax paid, HMRC hold no records and all is cash in hand. Ex doesn't claim any state benefits.

Child Maintenance Service state they cannot help, just to report tax evasion to HMRC- which has been done but until business is registered with HMRC they won't chase for Maintenance, this business will never be registered with HMRC. So, ex has been given a zero liability and stated to CSA they are not working but living off of savings and being supported by family members hence no claim for benefits.

The property we still jointly own is now being sold, and an offer has been accepted. The Court Order for division of equity from the sale was made over a year ago when my ex and I had roughly equal Shared Residency and used to share all costs for the children equally so we agreed 50/50 on the equity for this reason.

Is there anyway I can now get a greater share of the equity? Most of mine will go immediately on various debts and legal fees plus a car for the children as it's difficult to get them to school where we live.

I'm thinking the the original Order for sale stating we've agreed 50/50 on the equity cannot be changed but can I made a Schedule 1 application for a lump sum payment from my ex's share? My reason being that my ex has not paid any maintenance for the last 6 months and given the children live with me and I pay for everything and provide everything for them - he literally doesn't contribute a penny and even demands I send them to his with bags of clothes and items for the weekend.

Can Schedule 1 be used this way or is it only possible if the other party is very wealthy/a high earner as on paper my ex is unemployed and with no income. It just seems so wrong that my ex will be receiving the same amount from the sale of the property as me from the sale and not a penny will go on the 3 children or be used for assessing maintenance liability.

Any advice gratefully received.

I am not sure. Hopefully someone who knows will come along. Have you got a final court consent order (saying 50/50) or a court order following a financial hearing saying that?

Thank you for your reply, I'm not quite sure in afraid. We only have one Court Order which was the final order made after my Tolata application to force the sale of the property. The Judge ordered the sale (against my ex's wishes) and my ex and I agreed 50:50 on the equity as we both had equal shares residency at the time so both had a need to house the children.

There is no substitute for legal advise, but a court order is intended to settle matters once for all and cannot normally be revisited even if circumstances change.

With a few exceptions the court cannot impose an order for child maintenance when the CSA/CMS can process an application. Child maintenance can be agreed in an order "by consent" but not imposed by a court ruling. However under Schedule 1 the court has power to award a lump sum for the benefit of a child in special circumstances such as expenses related to a child's disability. The court can also order that a property should be held for the benefit of a child during their dependency.

The paying parent doesn't necessarily have to be wealthy but when a Schedule 1 application is made the court must give regard to the financial circumstances of both parents (and the child). Crux of the matter is whether there is enough evidence for the court to make an order if there is not enough evidence of your ex's income for the CMS to assess child maintenance, or for HMRC to investigate so he is compelled to register with them.

Thank you.

I can prove that my ex is going to receive a payment of about £20,000 in the next few weeks as it is is from the sale of our jointly owned property and I have all the paperwork to prove this.

Do you think a Schedule 1 application for a lump sum for the children would have any chance at all of success? Do I need to give specific amounts and what I think the money should be for or can I ask that my ex provides X amount of their £20,000 to contribute towards the general financial maintenance of the children given they usually pay absolutely zero towards them claiming they have no income?

The CMS deals with general maintenance and you can't apply for it through the courts unless there are step children, one parent lives abroad or there are children over 18 in education or training.

Under Schedule 1 claims for a lump sums for costs directly referable to the child (eg furnishing the child's bedroom or for equipment) but you need to provide specific documentary evidence of the costs. Alternatively a claim can be made on behalf of a child for property to be held to house them during their dependency.

Whether a claim is successful depends on the needs of the child and the ability of both parents to pay. If your ex's only resource is the £20k on paper he may not be deemed to have the ability to pay anything after meeting his own housing needs and living expenses. A family solicitor in possession of all the particulars is the best person to advise where you stand and what options there are in your particular circumstances.